O SIRA...Report of the First Independent Review of the operation of SIRA [s CTP Assist Service ADIIS Group ABN 49 830 891 678 ii ADIIS Group Mary Maini Executive Director, Motor Accidents

REPORT OF THE INDEPENDENT REVIEW OF

THE OPERATION OF SIRA’S

LEGAL ADVISORY SERVICE PILOT

Dr Andrew Fronsko

Principal, ADIIS Group

May 2019

Report of the First Independent Review of the operation of SIRA’s CTP Assist Service

ADIIS Group www.adiis.com.au

ABN 49 830 891 678 ii

ADIIS Group

Mary Maini

Executive Director, Motor Accidents Insurance Regulation

Motor Accidents Insurance Regulation

State Insurance Regulatory Authority

Level 6, 2-24 Rawson Place

Haymarket NSW 2000

Dear Ms Maini

Independent Review of the operation of SIRA’s Legal Advisory Service Pilot

I have pleasure in submitting to you my report on the First Independent Review of the operations

of SIRA’s Legal Advisory Service Pilot, that supports the New South Wales Compulsory Third Party

(CTP) Insurance Scheme.

I would like to thank you, SIRA staff and stakeholders who participated in interviews. The open

approach and frank feedback about the implementation of the Legal Advisory Service Pilot and

opportunities to improve the service has significantly assisted in formulating this report.

Yours sincerely

Dr Andrew Fronsko

Principal, ADIIS Group

May 2019

iii

TABLE OF CONTENTS

EXECUTIVE SUMMARY ............................................................................................................................. 7

LIST OF RECOMMENDATIONS .................................................................................................................. 9

BACKGROUND ........................................................................................................................................ 10

2017 NSW CTP SCHEME REFORMS 10

SIRA’S ‘CTP ASSIST’ SERVICE IN THE CONTEXT OF THE 2017 SCHEME REFORMS 10

‘LEGAL ADVISORY SERVICE PILOT’ IN THE CONTEXT OF BROADER CTP SCHEME REFORMS 11

SIRA’S ROLE IN MONITORING AND REPORTING: 12

SCOPE AND STRUCTURE OF THIS REVIEW .............................................................................................. 13

CONTEXT 13

SCOPE OF THIS REVIEW 14

OUT SCOPE OF THIS REVIEW 14

STRUCTURE OF THIS REPORT 15

METHODICAL APPROACH 16

MILESTONE DATES FOR KEY CLAIMS DECISIONS 17

CHAPTER 1: OBJECTIVES & OPERATION OF THE LEGAL ADVISORY SERVICE PILOT ................................. 18

SERVICE OBJECTIVES 18

SCOPE OF THE LEGAL ADVISORY SERVICE 19

Quantum of Advice 19

REFERRAL PROCESS 20

LEGAL ADVICE PROCESS 22

CLAIMANTS SEEKING TO ENGAGE THE PANEL SOLICITOR FOR ADDITIONAL SERVICES 22

MONITORING AND REPORTING 22

CHAPTER 2: OUTPUTS ............................................................................................................................ 23

INTRODUCTION 23

REFERRALS TO THE LEGAL ADVISORY SERVICE PILOT PROGRAM 23

Distribution of Referrals by month 23

Point in Claims Cycle at time of referral 23

Type of Matters Referred 24

Initiation of referral 25

What happened post receipt of legal advice? 25

OPERATIONAL DELIVERY: SIRA ARTEFACTS 26

Initial Launch Activity 26

Subsequent Activity 27

SIRA Web-based artifacts 28

KNOWLEDGE MANAGEMENT 29

CTP Assist: Knowledge and Training Manual 29

Knowledge Repository 29

CURRENT & PENDING ACTIVITY 30

Communications Plan 30

Promotion: Media & Editorial 30

iv

CHAPTER 3: OUTCOMES: STAKEHOLDER PERSPECTIVES ......................................................................... 31

INTRODUCTION 31

QUALITATIVE ASSESSMENT: 31

Legal Peak Bodies 31

Legal Advisory Service Panel Solicitors 33

Insurer Perspective 35

Dispute Resolution Service 37

CTP Assist Staff: Focus Group Feedback 38

CLAIMANT FEEDBACK 40

Introduction 40

Results of Claimant Survey 41

CHAPTER 4: DISCUSSION AND RECOMMENDATIONS ............................................................................. 43

THE LEGAL ADVISORY SERVICE SHOULD BE RETAINED 44

RECOMMENDATIONS FOR IMPROVEMENT OF THE LEGAL ADVISORY SERVICE 45

CTP Legal Advisory Service: Policy/Procedural Governance 45

Promotion of the Legal Advisory Service 46

Stakeholder Education 47

Monitoring and Reporting of Activity & Performance 47

Continuous Improvement 48

CTP Assist Activity 49

BIBLIOGRAPHY ....................................................................................................................................... 50

APPENDIX 1 ............................................................................................................................................ 53

NSW 2017 CTP SCHEME: BENEFIT REGIME (THEMATIC OVERVIEW) 53

APPENDIX 2 ............................................................................................................................................ 54

CTP CUSTOMER EXPERIENCE PRINCIPLES 54

CTP ASSIST CUSTOMER EXPERIENCE PRINCIPLES: MAPPING TO MOTOR ACCIDENT GUIDELINES AND OBJECTS OF ACT 55

APPENDIX 3 ............................................................................................................................................ 56

REGISTER OF LEGAL ADVISORY SERVICE SCOPE EXTENSION SUGGESTIONS AND ‘GREY AREAS’ RAISED BY STAKEHOLDERS 56

Scope Extension 56

‘Grey Areas’ benefiting from Procedural Clarification 56

ANNEXURE A .......................................................................................................................................... 57

MATTERS THAT MAY BE REFERRED TO THE LEGAL ADVISORY SERVICE 57

ANNEXURE B .......................................................................................................................................... 59

ABILITY TO CLAIM ‘REGULATED LEGAL COSTS’ FOR DISPUTES AT DRS WHERE THE INSURER DECISION IS OUTSIDE THE SCOPE

OF LAS. 59

ANNEXURE C .......................................................................................................................................... 60

LEGAL ADVISORY SERVICE PROCESS 60

ANNEXURE D .......................................................................................................................................... 61

SERVICE DELIVERY TIMELINES: DATE OF LAS REFERRAL TO CLOSURE (OVERVIEW) 61

v

LIST OF FIGURES

Figure 1 Legislative basis for the establishment of a Claimant Support Service ......................... 10

Figure 2 Legislative basis for enhanced data collection ............................................................ 12

Figure 3 Legal Advisory Service Approval Process (high-level schematic) .................................. 20

Figure 4 Obligations & Constraints: ‘Terms of the SIRA Legal Advisory Service’ ........................ 21

Figure 5 Number of Legal Advisory Service Referrals (by Month and Insurer) ........................... 23

Figure 6 Types of Matters Referred.......................................................................................... 24

Figure 7 Types of Matters Referred to the Legal Advisory Service ............................................ 25

Figure 8 SIRA Legal Advisory Service Webpage: Views per Month ............................................ 29

LIST OF TABLES

Table 1 Time evolution of key decision points under the 2017 Act (MAIA) ............................. 17

Table 2 Point in the Claims Cycle at time of referral to the Legal Advisory Service................... 24

vi

Glossary and Acronyms

1999 Scheme Injuries incurred in motor vehicle accidents before 1 December 2017 (refer Motor Accidents Compensation Act 1999)

2017 Scheme Injuries incurred in motor vehicle accidents on or after 1 December 2017 (refer Motor Accident Injuries Act 2017)

Accident year The year in which the motor vehicle accident giving rise to the claim occurred

ALA Australian Lawyers Alliance

ANF Accident Notification Form

CARS Claims Assessment and Resolution Service (independent dispute resolution services for accidents before 1 December 2017)

CTP Compulsory Third Party (CTP) Insurance for motor vehicle injury

DOA Date of Accident

DOD Date of Decision

DOL Date of Lodgment

DRS Dispute Resolution Service (SIRA’s independent dispute resolution services for accidents on or after 1 December 2017)

Green Slip CTP Insurance policy issued in NSW

IIR Insurer Internal Review (internal review of decisions, applicable to claims relating to accidents on or after 1 December 2017)

LAS SIRA’s Legal Advisory Service

LSR SIRA’s Legal Services Relationships (LSR) Team

MAA Motor Accidents Authority (NSW)

MAS Medical Assessment Service (independent dispute resolution services for accidents before 1 December 2017)

MACA Motor Accidents Compensation Act 1999 (NSW)

MAIA Motor Accident Injuries Act 2017 (NSW)

MAIR Motor Accident Injuries Regulation 2017

NPS Net Promoter Score

PIAWE Pre-Injury Average Weekly Earnings

SIRA State Insurance Regulatory Authority (NSW)

SLA Service Level Agreement

Legislation & Regulations

1999 Act Motor Accidents Compensation Act 1999 (also referred as ‘MACA’)

The Act Motor Accident Injuries Act 2017 (also referred as ‘2017 Act’ or ‘MAIA’)

The Regulation Motor Accident Injuries Regulation 201

`

Report of the Independent Review of the Operation of SIRA’s Legal Advisory Service Pilot

7

EXECUTIVE SUMMARY

The Legal Advisory Service (“the service”) commenced as a pilot operation in mid-

December 2017 with the express purpose of providing access to legal advice relating

to statutory benefits claims, for select eligible matters where access to legal advice

may be restricted, because of fee constraints imposed by the Motor Accident Injuries

Act 2017 and supporting regulations.

The service provides a ‘safety net’ that enables eligible claimants to access legal advice

in circumstances where this may not be otherwise available. There is consensus that

the service can fill a gap in access to professional services, and that the provision of a

‘safety net’ is meritorious and beneficial.

There is a compelling case for providing free and accessible legal advice for injured

people to enable them to make judgements about the merits of challenging insurer

decisions or to provide assurance that the insurers decisions are sound, lawful and

consistent with evidence obtained.

There is also a strong argument in ensuring claimants can navigate the system to gain

access to benefits that will assist their recovery and to exercise their rights in

circumstances where they disagree with decisions by an insurer. There is

accountability upon insurers to ensure claimants are fully informed on their rights and

obligations and the basis of claims decisions. This will remain an essential core service

offering, particularly in circumstances where lawyers cannot be paid for, or recover

costs for providing advice on certain matters related to obtaining statutory benefits.

There is already a well-established program of independent information and

navigation support provided by SIRA’s CTP Assist service, which uniquely places CTP

Assist to identify claimants whose circumstances warrant referral for additional

professional legal support to help claimants understand decisions made on their claim

and to equip claimants to pursue their rights to review decisions. CTP Assist should

continue to act as the gatekeeper for access to the Legal Advisory Service.

Most stakeholders interviewed as part of this review have indicated that there is a

recognised need for access to legal advice in areas of the statutory benefit regime to

ensure claimants receive their benefit entitlements. There remains contention,

particularly with legal stakeholders, as to whether this should be a comprehensive

platform of funded legal supports, or a ‘safety net’ to address gaps for eligible

claimants to access legal support where legal cost are not recoverable. Much of this

argument falls outside the scope of this review to resolve, and it is therefore

recommended that SIRA consider enhancing the circumstances/matters that may be

referred to the Legal Advisory Service to ensure appropriate access to supports.


8

The implementation of Legal Advisory Service has been a ‘soft-launch’ in the pilot

phase, with limited targeted promotion pending a review of the pilot. This

corresponds with low levels of awareness among key stakeholders and limited

accessible information for claimants about the scope and how to access the service,

prior to information on the service being migrated to the SIRA website in late

September 2018.

To effectively assess the efficiency and effectiveness or otherwise of the Legal Advisory

Service moving forward, there is a need to move out of the ‘soft launch phase’ to

increase awareness targeting claimants who are most likely to benefit from the service

and leverage the goodwill of stakeholders to enable the Legal Advisory Service to

meets its objectives and maximise its potential to support the target audience.

The work already in development to increase awareness of the service towards specific

claimants whom the service was designed to help, should continue as a priority.

This report provides discussion and recommendations that are primarily targeted at

ensuring clarity of scope of the Legal Advisory Service, strengthening operational

practices (and promotion of the service) and ensuring a planned and targeted

approach to stakeholder education and engagement. These actions are expected to

increase awareness and potential utilisation of the service.


9

LIST OF RECOMMENDATIONS

Recommendation 1 SIRA’s Legal Advisory Service be retained and transition from a pilot operation to a recognised service offering; SIRA’s CTP Assist unit continuing to act as the point of reference for access to the service. ....................................................................... 44

Recommendation 2 SIRA should consider enhancing the circumstances/matters that may be referred to the Legal Advisory Service to ensure appropriate access to legal supports. ........................................................................................................................... 45

Recommendation 3 SIRA continue to promptly address matters requiring policy or operational procedure clarification, with formal sign-off and version control protocols maintained to govern any changes to the codified Policy and Procedure Guides. ............... 46

Recommendation 4 Existing stakeholder engagement forums should continue to be utilised to formally log and respond to matters raised that require policy or procedural clarification and/or response. ............................................................................................. 46

Recommendation 5 Current work in reviewing the SIRA’s CTP website content relating to the Legal Advisory Service (descriptive and visual) should continue as a matter of priority. ........................................................................................................................... 46

Recommendation 6 To identify opportunities to continually improve the effectiveness of communication artefacts, periodic sample-based research/surveying should be undertaken. . ..................................................................................................................... 47

Recommendation 7 SIRA maintain periodic update-briefings for key stakeholders, principally insurers and legal practitioners, on the operation of the Legal Advisory Service facilitated through existing stakeholder forums (refer also Recommndaion 2). ................... 47

Recommendation 8 SIRA maintain its current project planning for future integration of work-flow, task and diary management associated with the Legal Advisory Service into the Salesforce system, also enabling automated management reporting of key activity and outcomes. .......................................................................................................................... 48

Recommendation 9 The experience/satisfaction of claimants using the Legal Advisory Service should continue to be routinely conducted to gain feedback and insight to improve/refine the service. ................................................................................................ 48

Recommendation 10 Panel solicitors should be requested to provide feed-back to SIRA on the quality of referrals (i.e. whether the referral was appropriate), and insight to any relevant issues in the claims administration process that could/should have been mitigated. .......................................................................................................................... 48

Recommendation 11 The timing of proactive outbound calls by the CTP Assist service as it may relate to potential users of the Legal Advisory Service should continue to be captured within the scope of the review of outbound call timing currently being undertaken by SIRA. ........................................................................................................... 49

Recommendation 12 The pending revision of CTP Assist Outbound Call Discussion Guides continue to make explicit reference to the Legal Advisory Service and reflected in CTP Assist staff Call-Coaching feedback (where appropriate)..................................................... 49


10

BACKGROUND

2017 NSW CTP Scheme Reforms

On 1st December 2017, the NSW Government’s reforms to the CTP Insurance (Green

Slip) scheme came into effect, under the Motor Accident Injuries Act 2017 (“the Act”).

The reforms aimed to better support people injured in motor accidents through early

access to benefits under no-fault arrangements, reducing the time it takes to resolve

a claim, and directing an increased proportion of benefits to seriously injured people.

A range of other reforms aimed to reduce the cost of Green Slip premiums, such as an

increased focus on reducing opportunities for claims fraud and exaggeration; and

restricting legal cost recoveries.

A thematic depiction of benefits under the 2017 Scheme is presented at Appendix 1.

SIRA’s ‘CTP Assist’ service in the context of the 2017 Scheme reforms

SIRA has historically provided a Claims Advisory Service to provide information and

advice to claimants and policy holders. This was structured to primarily respond to in-

bound calls, receiving about 40,000 calls per annum (SIRA 2018a, p.3) supplemented

with an outbound service to assist people representing themselves at CARS or MAS.

About thirty per cent of the workload was responding to enquiries about motor vehicle

policies, predominately relating to Green Slip price comparisons.

The Act explicitly introduced a mandatory requirement for SIRA to establish a claimant

support service, within its operations, to provide injured people with advice on claims

and dispute processes (and assistance with completing and lodging forms, as alluded

to in the second reading speech)1. This mandate is codified under s.10.1(i) and 7.49 of

the Act2 as an explicit function of SIRA.

Figure 1 Legislative basis for the establishment of a Claimant Support Service

Motor Accident Injuries Act 2017 Second Reading Speech

(9 March 2017)

Part 10 Administration Division 10.1 Functions of Authority

(i) to provide an advisory service to assist claimants in connection with claims for statutory benefits and claims for damages, and with dispute resolution under

Part 7.  Part 7 Dispute Resolution

Division 7.7 Miscellaneous 7.29 Advisory Service

The Authority is to establish in association with its operations an advisory service to assist claimants in connection with their claims for statutory benefits and claims for damages and with the dispute resolution procedures under this Part.

The State Insurance Regulatory Authority will also establish a claimant support service to provide injured people with assistance with completing and lodging forms as well as advice on claims and dispute processes.

1 Second Reading Speech, Motor Accident Injuries Bill 2017, motion by Mr Victor Dominello —

Minister for Finance, Services and Property, 9 March 2017 (Hansard) 2 S.10.1 vests with SIRA the explicit function of assisting claimants in connection with claims for

statutory benefits and [common law] damages and dispute resolution. With respect to dispute resolution, s7.49 clarifies that SIRA is to provide assistance on dispute resolution procedures.


11

In this context, SIRA’s CTP Assist service was established in December 2017 as part of

the implementation of the 2017 Scheme reforms under Motor Accident Injuries Act

2017. The service aimed to help people with making a claim such as with filling out

forms, and advice around getting a decision reviewed (SIRA, n.d.(a)). Claimant support

and information navigation services aims to “ensure all claimants have access to

information and are supported and empowered through their claims journey - it will

provide inbound [reactive] and outbound [proactive] services to support, advise and

assist people who seek to make or have to make a CTP Claim (SIRA 2017, p.9).

At an operational level, CTP Assist aims to provide a multi-channel, personalised claims

support and information for injured people, policy holders and others in the CTP

scheme such as doctors and health professionals (SIRA, 2018a, p.7).

The rationale for outbound [proactive] contact with claimants is that of an assurance

function, that “claimants are empowered to make informed choices on how to proceed

with their recovery and claim… if necessary [help to get] connected with their insurer

in the quickest possible time to assist them in early accesses to benefits” (SIRA 2017,

p.9 -emphasis added). Accordingly, CTP Assist staff routinely contact injured people

after they have lodged a claim to make sure they get the support they need (SIRA

2018a, p.7).

‘Legal Advisory Service Pilot’ in the context of broader CTP Scheme reforms

Section 8.3. of the 2017 Act limits the matters for which an Australian legal practitioner

is entitled to be paid or recover for a legal service in relation to CTP claims. It also

allows Regulations to be made that limit the legal services for which a legal practitioner

is entitled to be paid, and to set maximum costs for those legal services.

Part 6 of, and Schedule 1 to the Regulation provides, among other things, for the

maximum legal costs in connection with statutory benefit claims and disputes arising

in respect of those claims. The Regulations govern what legal fees can be charged in

connection with legal work performed and do not prohibit the provision of legal advice

and/or assistance nor pro-bono arrangements (SIRA n.d.(f)).

Whilst SIRA’s CTP Assist service will provide information navigation support to

claimants on the claims and dispute resolution process, it does not provide ‘legal

advice’ or legal services. This creates a potential risk that claimants will not have access

to appropriate legal advice where legal costs are not recoverable.

To provide a ‘safety net’ to support eligible claimants who may not have access to legal

advice on matters relating to statutory benefits (i.e. inability to obtain advice on

matters where no legal cost recovery is available), SIRA established a Legal Advisory

Service pilot scheme in mid-December 2017. Under this service, CTP Assist may refer

claimants to a panel of solicitors, contracted by SIRA, to provide independent legal

advice, directly to the claimant, on specific matters (refer Chapter-1 of this review for

detail).


12

SIRA’s role in Monitoring and Reporting:

Whilst there is nothing new for the Regulator to monitor scheme performance

(including outputs and outcomes), the 2017 Act requires SIRA to enhance its data

collection (including data on insurer behaviours and claims experience) to enable

better regulation of the scheme.

Figure 2 Legislative basis for enhanced data collection

Motor Accident Injuries Act 2017 Second Reading Speech (9 March 2017)

Part 10, Administration Division 10.1 Functions of Authority

. (a) to monitor the operation of the motor accidents scheme under this Act, and in particular to conduct (or arrange for other persons to conduct) research into and to collect statistics or other information on the level of statutory benefits and damages paid by insurers, the level of damages assessed by claims assessors and awarded by the courts, the handling of claims by insurers and other

matters relating to that scheme.  

Part 10 of the Bill will introduce enhanced data collection and reporting, and real-time performance monitoring of insurer behaviour and claims experience, to enable SIRA to better regulate the scheme


13

SCOPE AND STRUCTURE OF THIS REVIEW

Context

Several features of the 2017 Scheme reforms have influenced SIRA to place a greater

focus on the provision of publicly available and accessible information and support

services for policy holder and claims enquiries:

• All injured road users under the 2017 Scheme have access to statutory

income, medical and commercial attendant care benefits regardless of who is

at fault (including blameless accidents) for the first six months, which may

continue beyond this time limit for non-minor injuries for those not at fault.

Statutory benefits in the first six months are more comprehensive than those

available under the previous Accident Notification Form (ANF)3 system. This

enables reasonable benefits and supports to be delivered soon after making

a claim, with early intervention viewed to assist the recovery process

• Reduction in the Green Slip prices, with a Green Slip Premium Refund

scheme established to reimburse eligible motorists who paid their CTP

Insurance premiums prior to the 2017 Scheme taking effect4

• Lawyers cannot be paid for or recover costs for providing advice on certain

matters relating to statutory benefits. Regulation governs how much they

can charge for other types of services.

In this regard, SIRA has introduced the following new service activities under its “CTP

Assist” service banner:

• Proactive contact with injured road users for 2017 Scheme claimants after they

lodge a claim, at defined times, to make sure they are getting the support they

need (SIRA, 2018d, p.12)

• Legal Advisory Service to support unrepresented claimants on certain matters

relating to statutory benefits (SIRA n.d.(f))

• Systematic collection of Feedback (complaints, compliments, enquiries and

[general] feedback), to identify issues requiring intervention, or opportunities to

improve service delivery

• Periodic surveys to monitor claimant experience.

The Legal Advisory Service pilot was launched by SIRA in mid-December 2017. The

service provides legal advice relating to statutory benefits claims, where legal fees are

restricted by the 2017 Act and supporting regulations. To use the service, injured

people call CTP Assist who will arrange a referral if they are eligible. Advice is personal

and confidential. There is no charge to injured people (SIRA 2018f, p.9).

3 Limited to a cap of $5,000. 4 CTP Green Slip prices were reduced for most classes of vehicles from 1 December 2017 when the

2017 Scheme started. So, policy holders who purchased or renewed a Green Slip with a start date before 1 December 2017 may paid pre-reform prices, they may therefore be eligible for partial refund calculated on a pro-rata basis. The deadline for claiming is 30 June 2019.


14

Scope of this Review

This review focusses upon the following matters with respect to the Legal Advisory

Service:

1. Review of the efficiency and effectiveness of the Legal Advisory Service in

providing injured people with legal advice to date

2. The methods that SIRA has used to raise community awareness of this

service, including:

a. Internal: training materials, knowledge transfer, and artefacts used to

communicate with potential users of this service by CTP Assist and

the Dispute Resolution Service

b. External communications including website information about the

service

3. Review of stakeholder knowledge and communication of the service which

will include an evaluation of methodologies for referring this service to

claimants, such as case management awareness, training materials, and

artefacts in use to communicate with potential users of this service

4. Recommendations in relation to any of the above.

Out Scope of this Review

It is not the intent of this Review to audit the efficacy of advice provided by Legal

Advisory Service panel solicitors.

The review does not make recommendation of changes to the scope of the Legal

Advisory Service, noting there is yet to be a significant body of experience emerge,

with the most urgent priority to improve the promotion of service. Notwithstanding,

recommendation is made with respect to the governance framework needed to

capture and consider stakeholder feedback in this respect (refer Appendix 3).


15

Structure of this Report

This Report comprises four chapters

Chapter 1 Evaluates the objectives and operation of the Legal Advisory Service, the

underlying service philosophy, scope (e.g. policies) and key inputs. This

includes, an overview of enabling technology platforms, operational

functions, structure and resourcing of the Legal Advisory Service.

Chapter 2: Evaluates the key outputs of the Legal Advisory Service (what is

delivered), including discussion of procedures and performance.

Chapter 3: Focuses on stakeholder perspectives on the understanding of the service

perceived benefits (outcomes) and suggestions for improvement. This

chapter includes the views of stakeholders gathered through semi -

structured interviews.

Chapter 4: Provides a synthesis of key issues through a discussion section and

recommendations to improve the service.

Annexures:

A. Matters that may be referred to the Legal Advisory Service (LAS)

B. Legal Costs recoverable at DRS

C. Legal Advisory Service Process (key steps)

D. Service Delivery Timelines: from date of LAS referral to closure


16

Methodical Approach

This review is based on a review of materials provided by SIRA management. This

includes internal policy, procedure and training documents,

Data about activity relating to insurer internal reviews and dispute resolution was

obtained from SIRA’s Published Green Slip Quarterly Insights report. In addition, high-

level data by way of ad-hoc data requests were provided by SIRA relating to

operational activity (outputs) of the Legal Advisory Service pilot .

Semi-structured qualitative interviews were undertaken in the following categories5:

• CTP Assist Staff (6) and the Knowledge and Training Manager for CTP Assist

• Various SIRA personal overseeing communications, insurer performance and

liaison and the project management implementing the pilot

• Each of SIRA’s contracted Legal Advisory Service panel solicitors who had

provided advice under the service (six from a current panel of eight)

• Representative from the Australian Lawyers Alliance

• Representatives from the Law Society of NSW

• Representatives from licensed insurers (Suncorp, NRMA, Allianz and QBE).

In addition, six claimants who were referred to the Legal Advisory Service that had

opted-in to participate in feedback surveys, were contacted and invited to submit

feedback. Contact was established via email with a follow-up phone call, with an

invitation to submit feedback of their experience either via an on-line survey or via

phone interview. Four people submitted responses via the online survey. Two people

that were contacted had not responded at the time of completing this report.

For privacy reasons this report does not attribute comments to any individual or

organisation within the above sub-categories (other than where statements are on the

public record). To ensure the protection of legal professional privilege, the content of

advice provided by Legal Advisory Service solicitors to claimants was not assessed.

5 The NSW Bar Association declined the invitation to be interviewed, advising that here was nothing

more to add that had not already been stated on their submission to the New South Wales Legislative Council Law and Justice Committee Review of the Compulsory Third Party (CTP) Insurance Scheme (22 June 2018), and representation made at the Inquiry (23 August 2018).


17

Milestone dates for key claims decisions

Milestone dates for key claims decisions under the scheme governed by the 2017 Act,

will progressively evolve. This is illustrated in the table below.

By March 2019, fifteen months experience has begun to emerge with respect to claims

lodgement and liability determination decisions, treatment/care decisions, and weekly

benefit decisions. Twelve months experience for the second lability decision (whether

to extend benefits beyond 26 weeks), step down in income benefits, and requests for

a review of decision by SIRA's Dispute Resolution Service (DRS). Nine months

experience is begun to emerge with respect to the cessation of benefits for minor

injury or those mostly at fault.

Table 1 Time evolution of key decision points under the 2017 Act (MAIA)

Decision Milestone Time Experience Emerging

3 months experience

Six months experience

12 months experience

Claims Lodgment

3 mths from DOA

Dec 2017 Mar 2018 Jun 2018 Dec 2018

Liability determination to accept

28 days DOL

Dec 2017 Mar 2018 Jun 2018 Dec 2018

Treatment and Care decisions

ongoing Dec 2017 Mar 2018 Jun 2018 Dec 2018

Weeklies: 1st Eligibility Period (commence)

DOA Dec 2017 Mar 2018 Jun 2018 Dec 2018

Request DRS review

various Mar 2018 Jun 2018 Sep 2018 Mar 2019

Weeklies: 2nd Eligibility Period (commence)

3 mths DOA

Mar 2018 Jun 2018 Sep2018 Mar 2019

Liability determination extend benefits >26 wks

3 mths DOL

Mar 2018 Jun 2018 Sep 2018 Mar 2019

Cessation of benefits for minor injury or mostly at fault

6 mths DOA

Jun 2018 Sep 2018 Dec 2018 Jun 2019

Weeklies: 3rd Eligibility Period (commence)

18 mths DOA

Jun 2019 Sep 2019 Dec 2019 Jun 2020

Earliest Common Law lodgment for less severe injuries

20 mths DOA

Aug 2019 Nov 2019 Feb 2020 Aug 2020

Earliest Common law settlement for less severe injuries

24 mths DOA

Dec 2019 Mar 2020 Jun 2020 Dec 2020

Cessation of 3rd EP for Weeklies non-serious injury+no C/Law claim pending

24 mths DOA

Dec 2019 Mar 2020 Jun 2020 Dec 2020

Cessation of 3rd EP for Weeklies non-serious injury + C/Law claim pending

36 mths DOA

Dec 2020 Mar 2021 Jun 2021 Dec 2021


18

CHAPTER 1:

OBJECTIVES & OPERATION OF THE LEGAL ADVISORY SERVICE PILOT

Service Objectives

SIRA’s CTP Legal Advisory Service was launched on 18 December 2017 (SIRA 2018f,

p.9), as part of SIRA’s implementation of the 2017 Scheme reforms, and forms an

extension to the service offered by CTP Assist.

In the context that the 2017 Act and supporting regulation, does not provide for legal

cost recovery with respect to certain matters on statutory benefits, there is a potential

issue in claimants not being able to obtain legal advice on such matters in the absence

of a legal provider being willing to provide such services.

The service was launched as a ‘pilot’ with the intent to avoid a situation where an issue

occurs that was not anticipated. It is not meant to replace the access to legal advice

that is provided for in legal costs – rather, it is meant to be a ‘safety net’ (Donnelly

2018, p. 78).

SIRA’s implementation planning documents (dated 20 October 2017), indicates the

pilot was scheduled to be reviewed six months after the commencement of operation.

However, the review was delayed pending a more significant number of referrals to be

made, noting that at the time of launch SIRA was not expecting referrals to commence

until the quarter ending June 2018 (SIRA 2018a, p.11).

A panel of nine solicitors had been contracted by SIRA in mid-December 2017 to

provide the service. One panel solicitor has since withdrawn services, leaving a current

panel of eight.

Box 1: Extract from SIRA Website: ‘CTP Legal Advisory Service’

‘What is the CTP Legal Advisory Service? ‘

When the new CTP Green Slip scheme came into effect on 1 December 2017, new laws were introduced which prevents lawyers from receiving payment for certain services and regulates how much they can charge for other types of services. This means lawyers cannot be paid for or recover costs for providing advice on certain matters.

To ensure you have access to legal advice in these instances, SIRA has established a CTP Legal Advisory Service. This service is made up of a panel of lawyers who provide independent legal advice to people who have been injured in a motor accident on or after 1 December 2017.

If you are already receiving advice from a lawyer on your CTP claim it is recommended that you speak to them.

The intent of having a ‘pilot’ roll-out of the service was to provide the opportunity for

the service to be evaluated, prior to deciding to formally institutionalise the

operation (or otherwise).


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Scope of the Legal Advisory Service

The SIRA website articulates the scope of the service by way of matters that may be

referred to the Legal Advisory Service (Annexure A refers) and the conditions and

constraints (refer SIRA n.d.(c)), summarised below:

A matter can be referred at different stages during the life of a claim:

• before a decision is made by an insurer

• at any time before or after internal review (but not in connection with the internal

review application)6

• at any time before an application is made to the Dispute Resolution Service.

A matter cannot be referred if it is:

• a claim under the Motor Accidents Act 1988 or the Motor Accidents Compensation

Act 1999

• a common law claim

• advice relating to an application for internal review.

Where a potential Legal Advisory Service matter arises, and a claimant is legally

represented the preference is to refer them back to their legal representative in the

first instance (refer Box 2 below).

Box 2: Extract from Legal Advisory Service CTP Assist Training (Internal Training Document, September 2018, p.11)

Critical points:

• For claimants who have an existing relationship with a solicitor the first point should be to refer them to that solicitor. This is necessary to avoid conflict of interest

• Many enquiries received through claimants, you may find that they can be referred to alternative or more suitable pathways – i.e. going back to the insurer

• Where the issue cannot be resolved by yourself, the insurer or through alternative pathways, this can then be referred to the Legal Advisory Service.

In effect, the Legal Advisory Service is promoted by SIRA as a last resort ‘safety net’,

after alternative pathways of resolution are explored or considered. Inter alia, this is

underpinned on the obligation of insurers to advise claimants on their rights and

obligations with respect to statutory benefits.

Quantum of Advice

The service is limited to three hours of advice by the Legal Advisory Service panel

solicitor but may be extended to four hours with the approval of SIRA. This limit

broadly aligns with the quantum of advice on matters where legal cost recovery apply.

The fee arrangement does not provide for a Legal Advisory Service panel solicitor to

file any documents or make any applications in a court or to the Dispute Resolution

Service on a claimant’s behalf, or represent a claimant at Dispute Resolution or in a

court.

6 The exclusion of LAS services in connection with an internal review (point 2 above) is premised s.23 of

the Regulation that states “It is declared that no costs are payable for legal services provided to a claimant or to an insurer in connection with an application for internal review by the insurer under Part 7 of the Act”.


20

Referral Process

The referral process was designed in mid-December 2017 and remains in place (refer

Annexure C).

A referral for the Legal Advisory Service is initiated by a CTP Assist staff member as a

result of an inbound or outbound telephone call with a claimant. The need for referral

is assessed based on ‘verbal cues’ in the course of conversation (or a direct request is

made by the claimant). There is no codified algorithm or prescribed dialogue text to

uncover a need for the service, however a training module (launched in April 2018)

provides guidance in the form of a logical line of questions to help identify the need.

Figure 3 Legal Advisory Service Approval Process (high-level schematic)

Source: Legal Advisory Service CTP Assist Training (Internal Training Document, September

2018, p.9)

A CTP Assist staff member wishing to make a referral must first consult their Team

Leader to confirm the referral is within scope, with final approval authorised in

consultation with SIRA’s Legal Services Relationships (LSR) Team. Technical support in

the process, if required, is provided by the CTP Assist Training and Knowledge

Manager.

Once approved, the CTP Assist staff member contacts the claimant to confirm approval

and sends a Fact-Sheet and a document entitled the Terms of the SIRA Legal Advisory

Service for review and signature7. This document outlines the obligations of each party

(Figure 4 below), claimant consent for their names being provided to a panel solicitor

for a conflict of interest check, and acknowledgement of their acceptance of the

service obligations. On this form, the claimant indicates whether they will initiate

contact with the Legal Advisory Service panel solicitor, or whether they want the panel

solicitor to initiate contact.

7 A request is made that that the signed copy of the Terms of the SIRA Legal Advisory Service be

returned within five working days (email or post).


21

CTP Assist also request that the claimant send through all relevant documentation that

will be on-forwarded to the panel solicitor.8

When CTP Assist receives the signed documents, the LSR Team contacts a Legal

Advisory Service panel solicitor (on random allocation basis) to gauge their capacity to

undertake referral without conflict of interest. Once agreed, the LSR Team forwards

the referral, signed Terms of the SIRA Legal Advisory Service and supporting

documentation to the appointed Legal Advisory Service panel solicitor.

Figure 4 Obligations & Constraints: ‘Terms of the SIRA Legal Advisory Service’

Claimant Obligations

• provide the panel solicitor with timely, accurate and proper instructions, and all documents and other records relevant to the services provided to you, and

• act in a courteous and respectful manner at all times.

SIRA Obligations SIRA will not -

• decide whether a referral to a solicitor through the Legal Advisory Service is to be made;

• refer the matter to the Panel Solicitor within 1 business day of receiving this signed document;

• provide you with the name and contact details of the Panel Solicitor;

• Provide the Panel Solicitor with your contact details and signed Terms;

• pay the Panel Solicitor for the services provided in advising you under the referral, and

• maintain administrative and reporting records of the Legal Advisory Service.

• request a copy of the legal advice provided to you;

• pay for any services provided to you that fall outside the scope of the referral, or

• pay for any expenses that you may incur in managing your claim and accessing this service including but not limited to telephone costs, photocopying, postage, obtaining reports or undertaking investigations etc.

LAS Panel Solicitor Obligations Panel Solicitor will not -

• perform the work with professional skill and diligence acting as your independent legal adviser;

• act solely in your interests and provide legal advice only on the matter referred by SIRA Legal Advisory Service (your matter);

• explain to you that legal advice will only be provided with respect to the legal issues that relate your matter;

• request and obtain your consent to speak with the CTP insurer or other third parties to obtain information or investigate the claim, in order to advise you on the matter referred;

• inform you in a timely manner of any relevant timeframes as soon as he/she becomes aware; and

• inform you and SIRA when the referral has concluded.

• perform work for you where a conflict of interest exists;

• perform work for you outside of the matter referred such as advising generally on the claim;

• charge you any fees for providing legal advice;

• represent you at an internal review, dispute resolution service or court;

• brief a barrister or obtain expert reports; or

• be entitled to any reimbursement or charge related to obtaining any file, document or other item in connection with the provision of legal services to you under this referral.

Source: Terms of the SIRA Legal Advisory Service - extract

8 Depending where the matter is within the claims cycle this may include the claim form, decline letter from

Insurer, internal review request / internal review letter from Insurer, and any supporting documentation.


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Legal Advice Process

The process and timelines for the provision of advice by the Legal Advisory Service

panel solicitor to the claimant is set out in Annexure D.

In brief, after the claimant and panel solicitor make contact, and documents are

reviewed, the panel solicitor will provide verbal legal advice to the claimant within five

working days of referral. This advice is confirmed in writing by (via letter or email)

within two working days of providing verbal advice. The panel solicitor does not

provide SIRA with a copy of the advice to protect the claimant’s legal professional

privilege.

If the claimant seeks additional legal advice on their CTP claim that is outside the scope

of the referral, the Legal Advisory Service panel solicitor will advise the claimant that

the advice is outside the scope of the referral and:

• refer the claimant to SIRA through CTP Assist, who will assess additional

requirements and decide whether a further referral for additional services is

required; or

• obtain the claimants consent and contact SIRA on the claimant’s behalf, to

request a further referral for additional services.

Claimants seeking to engage the Panel Solicitor for additional services

Separate to the services provided under the Legal Advisory Service referral, should

the claimant seek to instruct the panel solicitor to act for them in relation to their

CTP claim or other matter, the panel solicitor must:

• notify SIRA in writing

• enter into a costs disclosure agreement with the claimant within their own or

firm’s capacity in accordance with professional obligations; and

• make it clear to the claimant in writing that the new arrangement is not part

of the services of the Legal Advisory Service and is separate from and not

related in any way to SIRA.

Monitoring and reporting

At present the monitoring and reporting of the Legal Advisory Services activity and

performance, and task work-flow management is undertaken manually, with diary

notes of activity maintained in Salesforce.


23

CHAPTER 2: OUTPUTS

Introduction

This Chapter examines the number and nature of referrals received under the Legal

Advisory Service pilot, and the activity by SIRA in promoting the service (internally and

externally).

Referrals to the Legal Advisory Service pilot program

Since the launch of the Legal Advisory Service pilot, there have been ten (10) approved

referrals up to the end of February 2019. Of the ten referrals made, nine claimants

ultimately pursued seeking legal advice, one claimant did not contact the Legal

Advisory Service Solicitor to progress the referral.

Distribution of Referrals by month

The first referral received was in May 2018, with the peak number of referrals received

in July 2018 (three).

Of the ten referrals, three each were managed by three licensed insurers (GIO, NRMA

and QBE) with one referral relating to a claim managed by Allianz.

Figure 5 Number of Legal Advisory Service Referrals (by Month and Insurer)

Source: SIRA

Point in Claims Cycle at time of referral

For all referrals, the request for assistance occurred after the insurer had issued its

liability notice under section 6.19(2) of the 2017 Act, which requires that the insurer is

to give the claimant notice as to whether the insurer accepts liability for the payment

of statutory benefits after the first 26 weeks after the date of the accident.


24

Of the ten referrals, six were made post an insurer internal review decision, and four

prior to any insurer internal review decision. All six referrals post insurer internal

review related to accidents prior to June 2018. All four referrals made prior to any

insurer internal review related to accidents on or after June 2018.

Table 2 Point in the Claims Cycle at time of referral to the Legal Advisory Service

Managing Insurer

Date of Accident (DOA)

Date of Referral (DOR)

Time between DOA - DOR

Point in Claims Cycle

NRMA Jan - 2018 Jul - 2018 21 weeks 6 days Post Internal Review

Allianz Feb - 2018 Jul - 2018 22 weeks 2 days Post Internal Review

QBE Mar - 2018 May - 2018 9 weeks 0 days Post Internal Review

QBE Apr - 2018 Oct - 2018 25 weeks 5 days Post Internal Review

QBE Apr - 2018 Jul - 2018 12 weeks 4 days Post Internal Review

NRMA May - 2018 Aug - 2018 12 weeks 6 days Post Internal Review

GIO Jun - 2018 Sep - 2018 12 weeks 2 days Pre Internal Review

GIO Jun - 2018 Aug - 2018 8 weeks 5 days Pre Internal Review

GIO Jul - 2018 Feb - 2019 29 weeks 0 days Pre Internal Review

NRMA Oct - 2018 Dec - 2018 5 weeks 5 days Pre Internal Review

Type of Matters Referred

Eight of the ten referrals were related to the calculation of the claimant’s pre-injury

average weekly earnings (PIAWE): five cases related to claimants who were self-

employed, three cases related to claimants who were in casual or part-time

employment.

One referral related to entitlements to statutory benefits for a person travelling

overseas.

One referral related to a dispute about an entitlement to statutory benefits in the first

28 days (back-pay of lost income).

Figure 6 Types of Matters Referred

Source: SIRA


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Initiation of referral

For all referrals, the request was initiated by the CTP Assist staff member (i.e. not

explicitly requested by the claimant). Most cases referred, were as a result of an

inbound call by the claimant, rather than through the scheduled 10-week and 23-week

outbound calls by CTP Assist.

Figure 7 Types of Matters Referred to the Legal Advisory Service

What happened post receipt of legal advice?

For seven of the nine ‘active’ referrals, the claimant was provided with final advice by

the panel solicitor within eight working days (average 3.5 working days). Two

referrals exceeded this time (14 days and 20 days respectively) as more information

needed to be provided by the claimant.

After legal advice was received:

o Five claimants made application to the Dispute Resolution Service for a

Merit Review of the insurer decision and received an outcome favorable to

the claimant

o One claimant’s insurer reversed its decision and made a fresh decision

with an outcome favourable to the claimant

o Three claimants did not take any further action.


26

Operational Delivery: SIRA Artefacts

Initial Launch Activity

Appointment of Legal Advisory Panel Solicitors

The conceptualization of the Legal Advisory Service pilot occurred in late 2017, during

the stakeholder consultation process associated with the 2017 scheme reforms. The

process (workflow) design of the service was substantively completed by October

2017.

Following consultation with legal peak bodies, a panel of nine (9) solicitors were

appointed by SIRA to provide services. The solicitors received training by SIRA in a

group session covering the scope of service and on the process of referrals, with the

intent that service was to go live from 18 December 2017. Attendees were provided

with a copy of the presentation material and were asked to provide feedback on a draft

version of the claimant letter and associated documentation.

SIRA’s expectation at the time was that referrals would not begin to emerge until

several months’ time (i.e. the second quarter of 2018) given key insurer decisions on

new scheme claims would not start to emerge until this time.

Initial Training of CTP Assist Staff

The initial training of CTP Assist staff was undertaken over a two-week period

concluding mid-April 2018. Training sessions covered the purpose and scope of the

service, procedures for referral and five scenario based learning activities of matters

that should and should-not be referred (in the latter case providing direction on the

appropriate course of action). The training material was made electronically available

to staff, that could be accessed on the Salesforce system.

CTP Assist Call-scripting guides provided prompts regarding the provision of

information on where and how claimants may be able to access free legal services

(when identified), and for the 10/23 week outbound a closing ‘Decision Point/Next

Steps’ prompt to “identify whether the Legal Advisory Service” is needed. An internal

training & knowledge article document provided guidance on the logical structure of

lines of questioning to support this (SIRA. n.d. (h), pp. 1,5).

Insurers Briefings

Insurers were first notified of the launch of the Legal Advisory Service pilot on

22 December 2017, via a letter informing insurers of the appointment of the Legal

Advisory Service panel solicitors, and was an agenda item at monthly meetings

between Insurer representatives and SIRA’s Insurance Performance Team.

An invitation was extended for CTP Assist representatives to visit each insurer and

provide a formal training session (lasting one hour). Two insurers accepted the offer

for training, two insurers did not respond to the offer. Of the insurers who accepted

the training offer, one insurer received training in February 2018, the other insurer

training early in the second quarter of 2018 (after requesting a slight delay due to


27

internal restructuring). Presentation materials were not left with insurers post the

training on the basis that the Legal Advisory Service was in a pilot phase and subject to

ongoing refinement, however, an email descriptive summary was distributed.

During March-April 2018 insurer representatives were contacted by SIRA’s Claims

Performance & Monitoring team (via email) on two separate occasions seeking

feedback on the Terms of the SIRA Legal Advisory Service intended to be sent to

prospective claimants seeking to use the service. All insurers noted with

acknowledgement, two insurers providing substantive feedback. Separate to this,

SIRA also prepared a Fact Sheet on the Legal Advisory Service which was issued to all

insurers.

Subsequent Activity

Follow-up training for CTP Assist staff

There have been two significant rounds of follow-up training sessions on the Legal

Advisory Service for CTP Assist staff. These occurred in mid-July 2018 (covering the

scope and purpose of the Legal Advisory Service, and more broadly legal costs within

the CTP Scheme); and early February 2019 as part of an update on the 2019 MAIA

amendments.

Training on the Legal Advisory Service is incorporated in induction-training modules

for new CTP Assist Staff; a new induction program completed for eight new staff who

participated in December 2018. Refresher training specifically covering the Legal

Advisory Service was conducted for new starters in late January 2019. Eight scenario

based learning activities were incorporated in the refresher and starter training

sessions.

In addition to the above, the Legal Advisory Service is periodically discussed at CTP

Assist team meetings (which is currently occurring), and CTP Assist staff receive

periodic email distribution of ‘knowledge articles’ relating to the service (short emails

from the SIRA’s CTP Assist Knowledge and Training Manager clarifying issues or ‘tips’

to assist in the identification of needs).

Follow-up engagement with Insurers

Post the initial launch, the Legal Advisory Service pilot was a standing agenda item on

the monthly meeting held between Insurers and SIRA’s Insurance Performance Team,

including a formal presentation on the operation of the Legal Advisory service in mid-

2018.

The Legal Advisory Service is currently not a standing agenda item, but may be raised

under general business. To date, no substantive feed-back has been received in

relation to the Legal Advisory Service.


28

SIRA Web-based artifacts

SIRA Website

A stand-alone webpage with detail of the legal costs under the 2017 Act, SIRA Legal

costs in claims for CTP statutory benefits. (SIRA n.d.(f)) was launched on 28 June 2018,

specially written for legal practitioners. This webpage provides detail of relevant

legislative and regulatory provisions, explicitly referring to the non-recovery of legal

costs with respect to statutory benefits. This webpage does not make explicit

reference to the Legal Advisory Service, however, does provide a link to CTP Assist

should further information on legal cost be sought.

A dedicated webpage pertaining to the Legal Advisory Service was launched by SIRA

on 24th September 2018, targeting a claimant audience. This was planned several

months prior and migrated as part of the ongoing optimization review of content on

the SIRA website.

This dedicated webpage is accessed from the heading webpage CTP Claiming

Compensation: The accident happened on or after 1 December 20179, that links to the

dedicated webpage for the Legal Advisory Service (SIRA n.d.(c)).10 On average, there

are about 150 webpage views per month (it is estimated that about 5% of these views

are from people within professional institutions).

The Legal Advisory Service webpage has two downloadable ‘Fact Sheets’ written for

claimants as the target audience, containing detail of the scope of the service and how

to access the service:

o CTP Legal Advisory Service (SIRA n.d.(d)) o CTP Timeframe expectations (SIRA n.d.(e)).

Downloads of the CTP Legal Advisory Service Fact Sheet over the last three months

have been averaging about 20 per month, with much lesser demand for downloading

the CTP Timeframe expectations Fact Sheet

Green Slip scheme quarterly insights report

Announcement of the launch of the CTP Assist Legal Advisory Service was published in

the report Green Slip Scheme Quarterly Insights, October-December 2017 (SIRA

2018(a), p.11).

Each subsequent Green Slip Scheme Quarterly Insights report contains brief reference

to the purpose of the Legal Advisory Service pilot and activity during the period.

9 https://www.sira.nsw.gov.au/claiming-compensation/motor-accidents-injury-claims/from-1-

december-2017 10 https://www.sira.nsw.gov.au/claiming-compensation/motor-accidents-injury-claims/from-1-

december-2017/ctp-legal-advisory-service

https://www.sira.nsw.gov.au/claiming-compensation/motor-accidents-injury-claims/from-1-december-2017https://www.sira.nsw.gov.au/claiming-compensation/motor-accidents-injury-claims/from-1-december-2017https://www.sira.nsw.gov.au/claiming-compensation/motor-accidents-injury-claims/from-1-december-2017/ctp-legal-advisory-servicehttps://www.sira.nsw.gov.au/claiming-compensation/motor-accidents-injury-claims/from-1-december-2017/ctp-legal-advisory-service


29

Figure 8 SIRA Legal Advisory Service Webpage: Views per Month

FS1 = Fact Sheet: CTP Legal Advisory Service FS2 = Fact Sheet: CTP Timeframe expectations

Knowledge Management

CTP Assist: Knowledge and Training Manual

In addition to training material, CTP Assist staff members had access to a documented

‘Knowledge and Training Manual, that provides a broad-based description of claimant

benefits and entitlements under the 2017 Act (with links to SIRA Catalogued Guidance

notes) and includes work-book style questions to test knowledge. The manual was

released to the CTP Assist Voice team for feedback in July 2018 and rolled out to the

rest of the teams in September 201811.

This Knowledge and Training Manual has an explicit sub-section with reference to the

scope and coverage of the Legal Advisory Service, and presentation of a logically

structured line of questions for CTP Assist staff members to use in claimant

conversations to help identify whether referral to the Legal Advisory Service is

appropriate.

This document was supplemented by a stand-alone Fact Sheet ‘Legal Advisory Service

Guide’ (an internal staff training resource) issued in September 2018, to assist with

identifying matters that may be within the scope of the Legal Advisory Service and

includes a summary of the referral process.

In February 2019 all Legal Advisory Service knowledge material was condensed into a

single documented procedure manual entitled ‘Legal Advisory Service Process Guide’

which has subsequently been circulated to all CTP Assist staff members.

Knowledge Repository

From September 2018, all training material and knowledge articles were migrated to

a centralised “SharePoint” platform. This involved the removal of historic versions of

training and knowledge materials to ensure better version control and currency of

11 For reference, the June 2018 version of this document and revised September 2018.


30

materials. Staff rely on this platform to access information. They can also refer to

information contained on the SIRA website, and the retrieval of previously emailed

knowledge articles.

It is noted that it is cumbersome for CTP Assist staff to locate and navigate knowledge

articles and training materials. This impacts the ability to have fluid conversations with

claimants as time is spent trying to locate relevant information.

At the time of this review, SIRA was designing a new ‘wiki-style’ centralised

information repository (Knowledge Base) for policy, procedures and knowledge

articles/training materials, to be implemented within the Confluence software

architecture. This will act as a ‘single source of truth’, that the CTP Assist team can

quickly access and navigate for reference during their daily customer interactions. To

facilitate ease of use, the plan is to integrate this Knowledge Base within the Salesforce

workflow system to enable direct access under the one operating system.

Current & Pending Activity

Communications Plan

A draft communications strategy and plan specific to the Legal Advisory Service has

been developed by SIRA, that incorporates key stakeholders (internal and external)

with respect to the Legal Advisory Service. The intent is to ensure that with the Legal

Advisory Servicing transiting out of pilot phase, that there is an explicit articulation and

common understanding of the role of each stakeholder, key messages and desired

outcomes with respect to communicating the service. The communication strategy

and plan will be finalised pending review of the content and recommendations

contained in this report.

Promotion: Media & Editorial

A suite of communication artifacts is currently under development:

Revised Web Base content

1. Content/copy specific to the Legal Advisory Service, and related content that,

can be linked to/from

2. Fact-Sheets (review)

3. Animation (illustrating the purpose, access and end-end process).

An Animation for the Legal Advisory Service is in the advanced stages of

development, with internal-testing consultations underway of a draft version to

ensure clarity of messaging.

Social Media & Editorial

The leveraging of social media and third party and editorial content (e.g. publicity)

has been considered, to be incorporated as appropriate within the above

communications strategy and plan.


31

CHAPTER 3: OUTCOMES: STAKEHOLDER PERSPECTIVES

Introduction

This chapter reviews the perspectives of key stakeholders on the following matters,

via a qualitative assessment based on semi-structured interviews:

1. How well is the policy intent of the Legal Advisory Service understood, and the

perceived benefit of program?

2. How is the service promoted (insurers only)?

3. Opportunities for improvement, including mitigating unintended consequences.

In addition, this chapter summarises the perspectives of a select number of CTP Assist

staff who participated in a focus-group feedback session, and the results of a survey

on claimant experience with the service.

Qualitative Assessment:

Legal Peak Bodies

Introduction

As an overarching perspective, Legal Peak Bodies (i.e. Australian Lawyers Alliance

(“ALA”), Law Society of NSW and the NSW Bar Association), indicate that a primary

problem with dispute resolution is one of scheme design: the only reason for the

creation of the Legal Advisory Service is that lawyers are prevented from recovering

costs (or adequately covering costs) for professional services in circumstances where

such services are required by claimants with respect to statutory benefits. This is

particularly the case for decisions that have potential to impact future rights.

These views are reflected in submissions (June 2018) and representations (August

2018) to the Legislative Council Standing Committee on Law and Justice, 2018 Review

of the CTP Scheme. Calls for reform include the development of protocols like those

operating at the Transport Accident Commissions Victoria (NSW Bar Association, 2018,

p.4), and the establishment of an independent tribunal (Law Society of NSW 2018, p.

6) or equivalent modelled similarly to the NSW Workers Compensation Independent

Review Office (ALA 2018, pp 26; Stone 2018, p.58).

It is expected that these views will not alter, and peak bodies will continue to advocate

for a more complete platform of funded legal advice services and independent review

of decisions to support claimants, rather than a ‘safety net’ of support in defined

circumstances that is provided by the Legal Advisory Service.

This is an issue of scheme design that is beyond scope of this review.


32

Notwithstanding, in the absence of scheme redesign to reform legal support

arrangements, there is a strong view that the quality of insurer decision making needs

to be strengthened (Stone 2018, p.5; Henderson 2018 p.30) and that an aggressive and

adversarial claims management approach may be detrimental to the claimant (ALA

2018, p.19; Henderson 2018, p.30).

Box 3: Reorientation at the Legislative Council Standing Committee on Law and

Justice, 2018 Review of the CTP Scheme (Stone 2018, p.55)

“ Lawyers do not want to be involved in statutory benefits claims. We want an insurer to

get together with a claimant, sort out what you need by way of weekly payments and

sort out your treatment expenses. We have no interest in being involved in that, save

that we want the claimant to be treated properly and fairly.

The concern is that from the smallish number of claims that are being seen by legal

practitioners, there are multiple instances of claimants not being treated properly and

fairly…

Understanding of the Legal Advisory Service

Whilst the policy intent of the Legal Advisory Service is understood, there appears to

be a slight lack of unprompted recall awareness, of detail surrounding the process for

referral, and types of matters that can be referred. For example, whether the service

is available before an insurer decision or internal review occurs, the processes of

referring a claimant to the service and subsequent receipt of advice, and whether a

Legal Advisory Panel solicitor could legally represent the same client moving forward.

There appears to be a reasonable awareness of matters where recovery of professional

legal services relating to statutory benefits are available: one person interviewed citing

examples where an insurer was advising claimants that legal costs were not

recoverable for a statutory benefit matter where this was not the case (this matter has

since been referred to SIRA).

There is an awareness that a panel of competent solicitors have been appointed by

SIRA to provide Legal Advisory Services, and there have been very few referrals to date.

Whilst it is acknowledged that some claimants are receiving legal advice pertaining to

statutory benefits matters on a pro-bono basis (see Henderson 2018, p.30), one person

interviewed indicated that more referrals to the Legal Advisory Service would be

desirable. This was premised upon the observation that claims may involve complex

matters like the calculation of weekly benefits for self-employed people or casual

workers that may also be the subject of forensic accounting reports obtained by an

insurer.

A view was expressed that there was “no such thing as an unmeritorious referral”,

because even if claimants had been given a sound decision, they could benefit from

independent professional advice to assure them of the efficacy of the advice (and

potentially head-off unnecessary disputation).


33

Suggestions raised for improvement to the service

The ALA and Law Society members interviewed were strongly of the view that if the

Legal Advisory Service were to be [more] successful there needed to be a considerable

uplift in awareness to ensure the service is accessible and utilized.

Suggestions for improvement for the effectiveness of the service, included the

expansion of the scope of the service to include general advice, investigative services

and advocacy.

Legal Advisory Service Panel Solicitors

Introduction

At the launch of the Legal Advisory Service in late-2017, nine solicitors were appointed

by SIRA to provide the service. One solicitor has subsequently withdrawn their service,

leaving a panel of eight. To date, six of the eight panel solicitors have provided advice.

Each of the six panel solicitors who have provided advice were interviewed as part of

this review.

In general, there was broad support for the service. Most matters referred to panel

solicitors (bar one) were regarded as appropriate for referral. Panel solicitors felt that

claimants derived value from the advice provided. Two of the claimants have

subsequently retained the Legal Advisory Service panel solicitor to represent them

with respect to their claim.

It was noted that most matters referred to date related to the calculation of weekly

benefits (Pre-Injury Average Weekly Earnings). This is not unsurprising given the

complexity associated with calculating weekly benefits, especially for groups such as

self-employed, independent contractors and overseas residents.

It was noted that two claimants were legally represented at the time of referral (the

claimant advising at the time of referral that were not legally represented). In each

case, the panel solicitor was of the opinion that the lawyer representing the claimant

was not prepared to advise on the matter that was the subject of the referral.

Perception of the Legal Advisory Service

There was a common understanding and support of the policy for Legal Advisory

Service to act as a safety net to support claimants with respect to statutory benefit

matters, who may not otherwise have access to legal advice when needed.


34

The benefit of the service was perceived as serving a dual purpose:

1. Advice on definitive matters of disputation, leading up to an insurer’s internal

review of a decision, or leading up to a review of decision by the Dispute

Resolution Service

2. Independent advice on the efficacy of an insurer decision, where there was

uncertainty (to decide whether to accept the decision or progress to

disputation).

There was support expressed for CTP Assist to retain its role as the most appropriate

gateway to access the service, to ensure quality referrals.

Anecdotal observations were made that the 2017 Act was driving a contraction of the

legal market that made it increasingly difficult for claimants to find a suitable lawyer

who could assist them with matters of a kind covered by the Legal Advisory Service.

Several panel solicitors also made the anecdotal observation that some lawyers were

focusing only on people with common law potential, and for this cohort of claimants,

some lawyers were not prepared to assist with legal advice pertaining to statutory

benefit matters where legal cost recovery was not possible.


The majority view among panel solicitors was that the number of referrals should be

significantly higher. Four members of the panel indicated they were also assessors for

the Dispute Resolution Service and offered the view that they had seen several matters

where unrepresented claimants would have benefitted from legal advice of the kind

provided by the Legal Advisory Service.

There were a range of views expressed about how to improve the service:

o Most panel solicitors interviewed (four) favored retention of the service

with significant improvement in promotion of the service and stakeholder

education.

o One panel solicitor suggested there needed to be reform of the dispute

resolution system to allow for the broader provision and access to legal

advice, and in the absence of this stronger auditing of the quality of insurer

decision making with the power for SIRA to make direct referrals of

decisions where it felt insurer decisions were open to challenge.

o One panel solicitor saw little merit in the service, primarily based on a view

that no one was using the service and the schemes design was primarily to

deter claims and deter lawyers from practicing in the field. It is noted that

this panel member had only received one referral that they regarded as

unmeritorious.


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There were differing views about the scope of the service. Three of the panel solicitors

interviewed were comfortable with the existing scope of matters that could be

referred. Two of the panel lawyers favored expansion of the scope of service to include

general advice, particularly where there is complexity and poor knowledge of the

scheme and entitlements (e.g. overseas residents). One of the panel solicitors felt the

service would be better if the panel solicitors could help with preparing submissions

and documents for the claimant.

Several panel solicitors interviewed referred to the need to clarify the policy on

referrals involving claimants who were already legally represented. The preference

was that CTP Assist should refer claimants back to the lawyer representing them in the

first instance. It was acknowledged, however, that whilst some lawyers would help

with matters where there was no cost recovery, some would not. The latter situation

requires clarification on whether the Legal Advisory Service should be available.

One panel member expressed a view that the [low] number of referrals reflected that

scheme experience was yet to fully mature. There was general agreement that the

Legal Advisory Service needed to be better promoted and that stakeholder

understanding, particularly with insurers needed to be enhanced.

Some panel solicitors (three) expressed a view that the service should extend beyond

single issue matters and enable referrals for general claims advice.

Panel solicitors all noted that since the initial presentation associated with their

engagement to participate in the program (mid-December 2017) they have not had

further formal engagement or briefings by with SIRA regarding how the service was

progressing or discussion on improvement opportunities that could be made to the

service to improve effectiveness.

Insurer Perspective

Introduction

Representatives of each of the four insurer groups were interviewed, the people

interviewed were either directly overseeing dispute resolution, or overseeing claims

policy that spans dispute resolution.

Perception of the Legal Advisory Service

At the time of interview, insurer representatives indicated they were familiar with

SIRA’s CTP Assist service, and where to locate information on the SIRA website, albeit

recall of specific detail on the operational delivery of the Legal Advisory Service was

not certain (noting two insurer representatives interviewed were fairly new in their

positions and had only recently became aware of the service).


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Although insurers are not involved in the referral process, only one insurer

representative was aware that referrals had been made where they were the

managing insurer12. This is largely explained by the low utilisation rate and CTP Assist

staff liaising directly with insurer case officers on issues.

With regards to the purpose/aim of the Legal Advisory Service, representatives

interviewed acknowledged there could be circumstances where claimants would

benefit from access to the service, principally with respect to disputes post internal

review of a decision (where a claimant is not legally represented), and also to provide

assurance around efficacy of the initial decision to reduce unnecessary disputes and/or

escalation of issues.

Insurer Education and Artefacts to promote the Legal Advisory Service

To verify artifacts used to communicate the service, insurers have provided SIRA with

written confirmation on artifacts to communicate the service. In general, a standard

operating practice is that claims staff are informed of the service, such that they can

converse with the claimant, as required, with respect to the service. One insurer has

explicitly indicated the preparedness to provide ‘refresher’ information to claims staff

as additional information becomes available from SIRA.

With respect to claimant correspondence relating to adverse decisions and the result

of an internal review decision, one insurer advised they will make explicit reference to

the Legal Advisory Service highlighting links to the SIRA website. Other insurers make

no explicit reference to the Legal Advisory Service, in preference to reference to the

CTP Assist service on the basis that CTP Assist is the appropriate initiating referral

source for access to the Legal Advisory Service.


All insurer representatives cited better stakeholder promotion and education of the

service as the primary improvement opportunity, including providing insurer claims

staff with periodic briefings/information about the Legal Advisory Service and its

utilisation.

There was support for further engagement with SIRA on how the service could be

better promoted and leveraged to reduce disputation.

Prima facie, there was a call for caution in including reference to Legal Advisory Service

in claimant letters, given there is current

Documents

O SIRA...Report of the First Independent Review of the operation of SIRA [s CTP Assist Service ADIIS Group ABN 49 830 891 678 ii ADIIS Group Mary Maini Executive Director, Motor Accidents